The real shock of the Nunes memo

When I was a homicide prosecutor in the Brooklyn District Attorney's office, my most challenging assignment was "ridi...

Posted: Feb. 4, 2018 5:58 AM

Updated: Feb. 4, 2018 5:58 AM

When I was a homicide prosecutor in the Brooklyn District Attorney's office, my most challenging assignment was "riding" homicide cases. I'd get paged (often in the middle of the night) and a patrol car would pick me up and take me to the grisly scene of a recent murder.

If a suspect was in custody, it was my job to evaluate the evidence and authorize an arrest if one could be legally supported. I had to be careful because the case would be mine to prosecute before a jury. A mistake would put an innocent suspect in prison while the true murderer roamed free. The stakes were high.

Sometimes in cases of all kinds, as in the Carter Page matter currently at the center of the controversy over a GOP memo on FBI surveillance, a search or surveillance warrant requiring the approval of a judge is required to gather critical evidence.

I remember one night knocking on the door of an elegant Brooklyn Heights townhouse seeking such a warrant from a tough, respected judge at approximately one in the morning. I had tried many murder cases before this judge and I was hopeful she would grant a search warrant in my case. She looked a little angry when answering the door in her bathrobe with cigarette and scotch in hand.

After berating me for bothering her at such an hour, she scrutinized my warrant application. It was based on the observations of a drug addict who claimed to have seen the defendant return to his apartment gun in hand after the murder and then leave without the gun shortly thereafter. The addict was known to the cops and had provided reliable information in the past.

The judge wasn't happy about the quality of my witness, but she had been around long enough to know that witnesses in criminal cases often have credibility problems themselves. She granted us the warrant. A search of the suspect's apartment led to a recovered murder weapon and a conviction.

I learned that night that search and surveillance warrants are often issued on information supplied by even the sketchiest of sources. Unlike the street addicts whose testimony often sends criminal defendants to prison for life, the now-notorious Christopher Steele -- a former British intelligence agent -- appears to be, by comparison, a seasoned professional highly adept at gathering reliable information.

Even assuming all the claims in the Nunes memo are true, the grounds supporting issuance and reissuance of the FISA warrants were easily met. The FISA statute, designed to deal with national security issues, permits the secret court to authorize surveillance of a US person if there is probable cause that the person is an "agent of a foreign power...knowingly engag[ing]... in clandestine intelligence activities."

Although the activities might be "spying" for a foreign power, there is no explicit requirement of criminality needed to get a warrant as in a conventional criminal case. The number and suspicious nature of Carter Page's activities and contacts with Russian operatives during the Trump campaign would have caused any reasonable judge to issue a surveillance warrant. Page, a former Trump foreign policy adviser, denies having any illegal interactions with Russian officials.

The Supreme Court has stated that the issuance of a search warrant can be supported by the "totality of the circumstances" presented to the court at the time a warrant is issued.

The Nunes memo glaringly omits any revelation of what other supporting information might have been submitted to the FISA judge, choosing instead to focus on cherry-picked alleged omissions.

Many of the other criticisms hyped in the memo may not even be relevant at all. For instance, the claim that the judge was informed that Steele was paid by a named US citizen was accurate. The court was free to to ask the assistant US attorney submitting the Steele information any questions about whether others were involved in the payments. Nothing, incidentally, is revealed about questions from the judge.

Other points raised in the memo are interesting background material but would not render the surveillance warrant to be illegal in any way. There was no illegality in Steele talking to the press (Yahoo in this case) or even in the fact that he disliked Trump. That sentiment seems to be shared by a majority of the American public as the President in his first year earned historically low approval ratings.

It certainly would not require disqualification of an FBI source if the "totality of the circumstances" supported the warrant application.

The rest of the Nunes memo's criticisms that were purportedly earth-shattering, Watergate-like revelations are equally empty claims. The fact that the Steele dossier was "salacious and unverified" doesn't mean that the portions of it relating to Carter Page were untrue. The surveillance was authorized so that law enforcement authorities could confirm or deny through other evidence the accuracy of the claims against Page.

This was a case in its investigatory stage, not the finished product. Fusion GPS demonstrates the good sense to turn the Steele material over to the FBI ... in essence making a 911 call ... because as the Department of Homeland Security likes to remind us, "If you see something, say something."

The dossier on the President, whether true or false, could subject him to blackmail by foreign powers. The FBI was correct in telling the President about the threat, even if "salacious and unverified."

If there is anything shocking in the Nunes memo, it can be found in its faulty reasoning, writing and sourcing. The American public needs to know the "totality of circumstances" presented to the FISA judge in order to fairly evaluate the conduct of the DOJ and the FBI.

If I had presented such a document to that Brooklyn Heights judge so many years ago, she would have thrown me out of her house with no warrant and a stern reprimand. Congressman Nunes and his fellow Republicans deserve the same.